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Halifax - Halifax's chief of police apologized to Kirk Johnson on Monday and admitted the heavyweight boxer was discriminated against when an officer stopped and seized his car five years ago, leaving him stranded on the side of a highway.

Frank Beazley said he was sorry for the difficulty the high-profile incident caused Johnson and his family after the black athlete was pulled over in April 1998 for allegedly not having the proper papers for his car.

"I accept the finding that Mr. Johnson was discriminated against and recognize that this has been a humiliating, stressful and painful experience," Beazley said.

"I regret the effect this incident and the inquiry has had on the black community."

But the head of the police association issued a very different statement Monday, insisting that Const. Michael Sanford acted appropriately and did not let race affect his judgment when he stopped Johnson.

Det.-Sgt. Bill Hollis dismissed the opinion of the police chief and the chairman of a human rights commission that found Sanford discriminated against Johnson at least in part because of race.

Hollis denied the veteran officer was guilty of racial profiling after he spotted the 1993 black Ford Mustang, noticed the car's Texas plates, allegedly saw two black men inside and seized the vehicle.

"He made the stop because of his training and experience, not because of racism or profiling or stereotyping," Hollis, head of the Municipal Association of Police Personnel, said moments after Beazley issued an official apology.

Hollis said the 450-person association, which has 37 black members, will accept new training to improve racial sensitivity, but he maintained that Sanford should have responded the same way if faced with a similar situation.

Johnson launched the discrimination case after he and his cousin Earl Fraser, who was driving the vehicle, were stopped by Sanford. The boxer accused the officer of pulling the pair over for "driving while black."

Sanford insisted he hadn't seen the colour of the men's skin as he passed them, but Philip Girard, the head of the inquiry, found race was a factor in Sanford's decision to stop the car.

Girard also found Sanford treated Johnson dismissively after the boxer produced his registration and insurance papers from Texas, where he has been living.

Sanford, who will not be disciplined, misread the date on the insurance and didn't recognize the registration sticker on the windshield, leading him to believe Johnson was without valid documentation.

Five police cars arrived on scene and a tow truck later came to take away Johnson's car.

Victor Goldberg, Johnson's lawyer, said he was dismayed by the police association's response and worried that little would change in a force he argued was tainted by systemic racism.

"They don't seem to get it," Goldberg said from his Halifax office, adding that Johnson was training in Dartmouth and not available for comment. "You have to wonder how there can be change if the rank and file don't think there's a problem. They're just worried about their reputation."

Girard ruled that Johnson, 31, is entitled to damages of $10,000, a much smaller sum than the $25,000 Johnson was seeking. Girard also awarded $1,000 to Fraser.

Girard said he didn't believe the Halifax police force is rife with racism. However, he ordered the force to hire two people to complete an assessment on whether race sensitivity training is needed.

Beazley said the force would accept the suggestions by offering Sanford and other members training that deals with stereotyping issues. They will also review sensitivity training to see if it needs to be improved.

The force will also look into ways to gather information on the role race plays in stopping cars. A consultant will be brought in to determine what needs to be done to deal with racial training.

TORONTO -- In an unprecedented settlement with an indignant black traveller, Canada Customs has pledged to hire an antiracism expert to train its officers and to collect race-based statistics on those chosen for luggage searches or other special attention.

The deal, which heads off what could have been a five-week Canadian Human Rights Tribunal hearing, also includes an apology and undisclosed cash payment to Selwyn Pieters, the Toronto man who launched the case after a student Customs officer decided to search his bags as he returned by train from a weekend in New York in May of 1999.

Mr. Pieters, a federal employee and part-time law student who has more than once complained of official racism, ended up in a tense exchange on the train with a Customs supervisor. The supervisor called him "Billy Jack," the title of a 1971 movie in which a half-white, half-native karate expert avenges bigotry with his feet.

Although Customs admitted the name-calling was wrong, Mr. Pieters pressed for a public hearing, asserting that he was picked for the search because of the colour of his skin. After an investigation, the Canadian Human Rights Commission decided last spring that a hearing was warranted. The settlement, signed on Jan. 18 and approved by the commission last week, was not made public until now.

In it, Canada Customs pledges to:

Order its officers to tell everyone picked for secondary inspection (luggage searches, body searches and other steps beyond initial questioning) the reason for the inspection.

Ensure that decision-making criteria used by the officers do not unlawfully discriminate on racial or other grounds.

Hire an outside expert by March 1 to provide antiracism and cultural diversity training to student Customs officers during their orientation, new officers within 180 days of hire and all others as regular refreshers.

Hire an outside contractor for a pilot project to collect statistics by race, colour, national or ethic origin and gender on travellers chosen for secondary inspections and to analyze the criteria used in choosing them.

Consider making the statistical project permanent, with a public report each year to the human-rights commission.

Meet with representatives of minority groups each year to hear what they think about Customs practices.

Mr. Pieters, now 34, is a refugee claim officer with the Immigration and Refugee Board of Canada and volunteer operator of an antiracism Web site.

He has also pursued racial-harassment complaints at the provincial level against the Toronto Police and the former Toronto board of education.

He had set out to make the federal hearing a public examination of racial profiling -- the use of race, consciously or otherwise, in official guesses about which individuals are likely to break the law.

Even so, he is happy with the settlement, he said last night.

"Now we have something saying that Customs isn't going to target people based on irrelevant characteristics such as race. . . . We now have antiracism training that each and every officer is going to get within 180 days of their hiring, and they're going to be continually upgraded.

"We now have Customs [promising] to provide an explanation to each and every person as to why they're being referred to secondary search.

"I mean, that's significant, because at least it's going to cure the arbitrariness."

Michel Proulx, a Customs media-relations officer, said the agency admits no wrongdoing but decided it was best to settle without a hearing.

Customs employees already undergo what is called sensitivity training, he said, but "to ensure that we don't have any problems, additional training will be given to our Customs officers."

Posted by: Toronto Criminal Defence LawyerThis article originally appeared in the May 23, 2003, issue of The Lawyers’ Weekly

On April 16, 2003, the Ontario Court of Appeal released its decision in R v. Brown, [2003] O.J. No. 1251, which deals with the occurrence of racial profiling by the police during investigation, detention and arrest. It also addresses the trial judge’s handling of the Charter application based on the allegation of racial profiling raised by the accused.

On November 1, 1999, Constable Olson, a Metro Toronto police officer, stopped Decovan “Dee” Brown, a young man of African-American descent and a former professional basketball player for the Toronto Raptors, as he was driving down the Don Valley Parkway. The officer’s reason was that Mr. Brown was driving in excess of the speed limit and, on two occasions, his car had crossed out of and back into the lane in which he was traveling.

Brown was administered a roadside screening device test, which he failed. As a result, he was taken to the police station and administered a breath test. Brown’s blood-alcohol concentration registered at 140 mg per 100 ml of blood. He was charged with driving over the legal limit (more that 80 mg of alcohol in 100 ml of blood).

At trial, it was argued that the only reason Mr. Brown was stopped was because he was a young black man driving an expensive car (i.e. racial profiling). As a result, said the defence, the arrest was contrary to section 9 of the Charter and the results of the breath tests should be excluded.

Brown appealed to the Superior Court of Justice. The conviction was overturned and a new trial ordered. The appeal judge, Justice Brian Trafford, ruled that there was a reasonable apprehension of bias created by the trial judge’s handling of the racial profiling issue and ordered a new trial. The Crown appealed to the Ontario Court of Appeal.

The court of appeal concluded that, indeed, there was a reasonable apprehension of bias. It came to this conclusion based on comments by the trial judge made during (a) the cross-examination of the arresting officer, (b) during defence counsel’s submissions on the Charter application and, (c) during the sentencing process.

At one point the trial judge characterized the Charter application as “serious allegations, really quite nasty, malicious, potentially, accusations based on, it seems to me, nothing…” During the sentencing process, the trial judge suggested that Mr. Brown apologize to the officer for raising the racial profiling issue, which he characterized as “distasteful”.

The Ontario Court of Appeal confirmed that the test for determining a reasonable apprehension of bias was whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it was more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly. In relation to a racial profiling case, it confirmed that the reasonable person must be taken to be aware of the history of discrimination faced by disadvantaged groups in Canadian society protected by the Charter’s equality provisions and that these were matters of which judicial notice could be taken.

On the issue of racial profiling, the Ontario Court of Appeal made the following pronouncements:

1. Definition of racial profiling: Racial profiling involves the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group.

2. Proof of racial profiling: A racial profiling claim can rarely be proven by direct evidence since an officer is not likely to admit that he has been influenced by racial stereotypes in the exercise of his discretion. Therefore, racial profiling must be proven by inference drawn from circumstantial evidence.

3. Generally persuasive evidence: Where the evidence shows that (a) the circumstances surrounding a police detention correspond to the phenomenon of racial profiling and (b) provide a basis to infer that the police officer is lying about the reason for singling out the accused; then the record is then capable of supporting a finding that the stop was based on racial profiling.

4. Motivation for racial profiling: Defence counsel should not be expected to provide a motivation for racial profiling since the phenomenon provides its own motivation – a belief by a police officer that a person’s colour, combined with other circumstances, make him more likely to be involved in criminal activity.

5. Likelihood of occurrence: Racial profiling is more likely to occur in areas where its victims look out of place than in areas where their skin colour is prominent.

6. Pattern of abusive conduct: The accused is not required to demonstrate that a particular instance of police conduct alleged to be racial profiling fits a wider pattern of abusive detention amounting to racial profiling.

In the present case, the Ontario Court of Appeal found that there was evidence capable of supporting a claim of racial profiling. This included evidence that 1) the accused was a young black man wearing a baseball hat and jogging clothes driving an expensive car; 2) evidence that the officer looked into the accused’s car before stopping him; 3) evidence of a second set of notes prepared by the officer to firm up his reasons to justify the stop once he realized that the accused was a person of considerable means capable of defending th charge; 4) evidence of a licence check that the officer made before the stop; 5) evidence of discrepancies between the times recorded in the officer’s notebook and those, which he gave to the breathalyzer technician.

The Court of Appeal confirmed Justice Trafford’s decision and dismissed the appeal.

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